Case in point: yesterday’s unearthing of a May 2009 letter noted Harvard Law School professor, Supreme Court litigator and presidential advisor Laurence Tribe wrote to President Barack Obama giving his thoughts on who should – and should not – replace Supreme Court Justice David Souter, who had just announced his retirement.
Tribe warned Obama that appointing “someone like Sonia Sotomayor” was a bad idea.
“Bluntly put, she is not nearly as smart as she seems to think she is, and her reputation for being something of a bully could make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues [like] voting rights and the Title VII case of the New Haven firefighters,” Tribe wrote, referencing then Judge Sotomayor’s role in the 2nd Circuit ruling in the controversial firefighter discrimination case Ricci v. DeStefano.
In the letter – posted yesterday by conservative commentator Ed Whelan, president of the Ethics and Public Policy Center – Tribe strongly urged Obama to select Elena Kagan, the former dean of Harvard Law whom Tribe knew well, for Souter’s seat.
Tribe also said he was a fan of 7th Cir. Judge Diane Wood, who he called “more powerful intellectually than Sonia Sotomayor or any of the others mentioned as plausible prospects at the moment with the sole exception of Kagan.” But he noted that, given Wood’s age, she “would be likely to serve nearly a decade less than Elena and doesn’t appear to me to have the dynamic personality or the extraordinary diplomatic gifts for inspiring confidence and for moving others.”
In a National Review Online piece accompanying the letter, Whelan noted that after Sotomayor’s nomination, Tribe seemed to show support for the nominee in a New York Times article. “The president’s inquiries into the way she interacts convinced him that she would be a positive force in the chemistry of the Supreme Court,” Tribe told the Times.
“Translation of this last sentence: ‘I couldn’t persuade Obama not to pick her,’” Whelan wrote.
Tribe told the Wall Street Journal‘s Jess Bravin yesterday: “I don’t comment on my confidential advice to the president, and I regarded the letter I wrote in May 2009 as confidential. The fact that it was leaked doesn’t change my policy….I would also stress that the reservations I expressed about Justice Sotomayor prior to her appointment were amply refuted by the closer study I was later able to give her record and that have been fully negated by her performance as a justice.”